Protection of Remaining Creditors in Fraudulent Company Split- a mixture of Company Law/ Civil Law/ Insolvency Law: A Comparative Study

2015 Fiscal Year Final Research Report

• Project/Area Number: 25780071
• Research Category: Grant-in-Aid for Young Scientists (B)
• Allocation Type: Multi-year Fund
• Research Field: Civil law
• Research Institution: Oita University
• Principal Investigator: MAKI MARIKO 大分大学, 経済学部, 准教授 (60648054)
• Project Period (FY): 2013-04-01 – 2016-03-31
• Keywords: 会社分割 / 債権者保護

Outline of Final Research Achievements

When a company splits, its rights and obligations are comprehensively transferred to succeeding company, etc. without the consent of its existing creditors. In Japan, there have been frequent abusive company splits, e.g. allowing creditors of the original company to be excluded from the succeeding company and avoiding claims by bankrupting the split company. The types of protection for remaining creditors include the right to directly demand performance in company law, the right of avoidance in insolvency law and the right to demand the rescission of fraudulent act in civil law. Although the choice of which protection to apply depends on the nature of the fraudulent acts concerned, since an abusive company split also includes fraudulent conveyance and preference, assigning the standard is difficult. In this study, it is suggested that the protection types should be decided in individual cases based on substantive judgment of the opponent exercising said rights of the situation at hand.

Free Research Field

民事法学